Cite as People v. Buckallew, 848 P.2d 904 (Colo. 1993)
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Larry Eugene BUCKALLEW, Defendant-Appellant.
No. 91SA356.
Supreme Court of Colorado, En Banc.
March 15, 1993.
Rehearing Denied April 12, 1993.
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy
Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Deborah Isenberg
Pratt, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Darol C. Biddle, Pueblo, for defendant-appellant.
Chief Justice ROVIRA delivered the Opinion of the Court.
A jury convicted the defendant, the Pueblo County Sheriff, of
one count of issuing a false certificate regarding Gary Perko in
violation of section 18-8-406, 8B C.R.S. (1986). This charge
arose from an order placed with GSI, Inc. on behalf of "deputies"
Aaron G. Ghini, Frederick L. Mosher, and Gary Perko for Steyr AUG
semi-automatic rifles. In conformity with an agreement entered
into between GSI and federal authorities, a certificate written
on Pueblo County Sheriff's stationery and signed by defendant was
attached to the purchase order. The certificate reads as
follows:
CERTIFICATION OF SUPERVISORY LAW ENFORCEMENT OFFICIAL
To the Director, Bureau of Alcohol, Tobacco, and Firearms, I
hereby certify as follows:
Deputy Gary Perko is a law enforcement deputy for this
department who is authorized to carry a firearm in connection
with his official duties. Deputy Perko is authorized to carry
and use personally owned firearms in the performance of his
official duties, and the firearm being purchased is for the
performance of his official duties.
I am familiar with the circumstances surrounding the purchase
of a STEYR AUG-SA by Deputy Perko. I am satisfied that the
firearm is suitable for use in connection with official duties.
I have been advised and assured that the firearm is in fact
being purchased for use in connection with official duties and
not for the purpose of transfer or resale.
It is the policy of the department that deputies may carry and
use personally owned firearms in connection with their official
duties. Attached hereto is a copy of any written law,
regulation or guidelines (to the extent such law, regulation,
or guidelines exist in written form) requiring, authorizing or
permitting the use of personally owned firearms in connection
with official duties.
I declare under penalty of perjury that the foregoing is true
and correct. Executed on February 8, 1990.
s/
Larry E. Buckallew
Sheriff
Perko was not a law enforcement deputy who was authorized to
carry firearms in connection with his official duties. He was
employed at the Pueblo County Sheriff's Department in the
detention bureau, and because his duties did not authorize him to
carry firearms he was issued a "limited commission" as a deputy
sheriff. In this capacity he was given no responsibilities which
required him to use a weapon.
I
The defendant argues that the statute under which he was
charged and convicted, Sec. 18-8-406, 8B C.R.S. (1986), as
applied to a county sheriff is void for vagueness and
overbreadth. (Footnote 1) Section 18-8-406 deals with the
issuance of false certificates and provides:
A person commits a class 6 felony, if, being a public servant
authorized by law to make and issue official certificates or
other official written instruments, he makes and issues such an
instrument containing a statement which he knows to be false.
It is well settled that "[w]hen reviewing a statute upon a
challenge of unconstitutionality due to vagueness, the duty of
the reviewing court is to construe the statute so as to uphold
its constitutionality whenever a reasonable and practical
construction may be applied to the statute." People v.
Beruman, 638 P.2d 789, 792 (Colo.1982). See R & F Enters., Inc.
v. Board of County Comm'rs, 199 Colo. 137, 606 P.2d 64 (1980).
Additionally, "[a] statute is presumed to be constitutional, and
one who challenges its constitutionality must prove its
invalidity beyond a reasonable doubt." Beruman, 638 P.2d at
792. See People v. Lorio, 190 Colo. 373, 546 P.2d 1254 (1976).
Due process of law requires that a criminal statute be
reasonably specific. This requirement, that terms of a penal
statute
must be sufficiently explicit to inform those who are subject
to it what conduct on their part will render them liable to its
penalties is a well-recognized requirement, consonant alike
with ordinary notions of fair play and the settled rules of
law. And a statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its
application violates the first essential of due process of law.
Memorial Trusts v. Beery, 144 Colo. 448, 455-56, 356 P.2d 884,
888 (1960). This rule is premised on notions of fundamental
fairness because if there is no reasonably ascertainable standard
of guilt "the criminal process may lie open to whim and caprice
which is abhorrent to our system of fair play and justice."
People v. Heckard, 164 Colo. 19, 22, 431 P.2d 1014, 1015 (1967).
A statute which fails to give this fair notice of the proscribed
conduct violates due process of law. See People v. Ro'mar, 192
Colo. 428, 559 P.2d 710 (1977).
The defendant argues that section 18-8-406 is vague because the
statute contains no definition of the phrase "authorized by law."
However, as we have noted in the past, a criminal statute does
not need to contain a precise definition of every word or phrase
constituting an element of the crime. See People v.
Schoondermark, 699 P.2d 411, 416 (Colo.1985); People v. Castro,
657 P.2d 932, 939 (Colo.1983).
Here, a readily ascertainable standard by which one's conduct
can be measured is present. A public servant is authorized by
law to perform particular acts if there is a legislative
enactment, a legally adopted administrative rule or regulation,
or a judicial pronouncement which defines his duties. See People
v. Beruman, 638 P.2d 789, 793 (Colo.1982) (construing phrase
"duty imposed upon him by law" not to be unconstitutionally
vague). Moreover, a county official is "authorized by law" to
perform any other acts necessary to carry out these express
responsibilities. See Douglass v. Kelton, 199 Colo. 446, 610
P.2d 1067 (Colo.1980). We conclude, therefore, that the
defendant has failed to carry his burden of establishing
invalidity beyond a reasonable doubt.
We also reject defendant's argument that the statute is
overbroad. A statute is overbroad if, although ostensibly
designed to punish activities which are not constitutionally
protected, it infringes upon the enjoyment of protected
fundamental rights by encompassing those activities within its
prohibition, even though the unprotected activities might have
been properly punished under a more carefully drawn statute.
People v. Becker, 759 P.2d 26, 29 (Colo.1988); City of Lakewood
v. Pillow, 180 Colo. 20, 23-24, 501 P.2d 744, 745 (Colo.1972).
Where fundamental freedoms are not implicated, a statute passes
constitutional muster if it is reasonably related to a legitimate
governmental interest. Becker, 759 P.2d at 29. The defendant
has failed to show that the statute infringes upon any
fundamental freedom. Here, it is self-evident that the statute
is reasonably related to the legitimate governmental interest in
protecting the public from the issuance of false documents by
public officials. Accordingly, the statute is not overbroad.
II
Defendant next argues that section 18-8-406 does not apply to a
county sheriff because a sheriff is not a public servant
"authorized by law" to issue official certificates. As noted
above, section 18-8-406 makes it a crime for a "public servant
authorized by law to make and issue official certificates or
other official written instruments," to make and issue "such an
instrument containing a statement which [the public servant]
knows to be false." The defendant is clearly a public servant.
See Sec. 18-8-101(3), 8B C.R.S. (1986) ("public servant" means
an officer or employee of government whether elected or
appointed). Thus, the issue is whether the defendant is
"authorized by law" to make and issue official certificates.
Although a sheriff's authority is generally created by
legislative enactment, a sheriff also has those implied powers
which are reasonably necessary to execute those express powers.
Douglass v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980). The
test for determining whether a power is implicit within a
sheriff's express authority is whether or not the sheriff can
fully perform his functions without the implied power. Section
30-10-510, 12A C.R.S. (1986), requires that the sheriff's
appointment and revocation of deputies be made in writing and
filed with the county clerk and recorder. Obviously, this
obligation cannot be carried out without making an official
written instrument. Additionally, numerous duties of a sheriff
carry with them the implicit responsibility to make some kind of
contemporaneous, official written record or document; for
example, the sheriff's bond, see Sec. 30-10-501, 12A C.R.S.
(1986), and the issuance of permits to carry concealed weapons,
see id. Sec. 30-10-523.
It is clear that a sheriff cannot fully perform his functions
without the implied power to make official certificates. As
such, he is "authorized by law to make and issue official
certificates," and falls within the ambit of the statute.
III
The grand jury returned the following bill of indictment for
count three, the count for which the defendant was convicted:
On or about the 8th day of February, 1990, Larry Eugene
Buckallew, a public servant, the elected Sheriff of Pueblo
County, Colorado, authorized by law to make and issue official
certificates and other official written instruments, did
unlawfully and feloniously make and issue such an instrument,
to wit: a written certification on official stationery of the
Pueblo County Sheriff's Office, which on it's [sic] face stated
that it was a certification under the penalty of perjury. Said
certificate falsely stated the position and authority of Gary
Perko to allow Gary Perko to obtain federally restricted
assault weapons. Larry Eugene Buckallew, knowing that said
certification was false, submitted the false certificate to the
Director of Alcohol, Tobacco and Firearms, a federal agency, so
that weapons could be purchased by Gary Perko, the issuance of
said false certification being an unlawful, felonious act in
the State of Colorado in violation of C.R.S. Sec. 18-8-406, as
amended, Issuing a False Certificate.
A criminal indictment by a grand jury serves two essential
purposes. First, the indictment must give the defendant
sufficient notice of the crime that has allegedly been committed
so that a defense may be prepared. Second, the indictment must
define the acts which constitute the crime with sufficient
definiteness so that the defendant may plead the resolution of
the indictment as a bar to subsequent proceedings. People v.
Xericos, 186 Colo. 21, 525 P.2d 415 (1974). "To accomplish these
purposes the indictment must clearly state the essential facts
which constitute the offense. Fundamental fairness requires no
less." People v. Tucker, 631 P.2d 162, 163 (Colo.1981). See
People v. Donachy, 196 Colo. 289, 291, 586 P.2d 14, 15-16 (1978).
These requirements have been codified in Crim.P. 7(a)(2) which
states: "Every indictment of the grand jury shall state the
crime charged and essential facts which constitute the offense."
The defendant raises several issues regarding the sufficiency
of count three. We shall address each in turn. First, defendant
argues that count three of the indictment failed to charge an
offense because it did not specify the source of his alleged
authority to issue official certificates. However, there is no
need for the indictment to set forth the source of defendant's
authority as long as the duty to refrain from engaging in the
prohibited conduct is clear from the count. Here, that duty, as
mandated by section 18-8-406, is clearly identified in count
three of the indictment.
People v. Beruman, 638 P.2d 789 (Colo.1982), is not to the
contrary. In Beruman we held an indictment brought under section
18-8-405(1)(a), 8B C.R.S. (1973) (making it a crime for a public
servant to knowingly, arbitrarily, and capriciously refrain from
performing "a duty imposed by law"), insufficient because an
indictment under section 18-8-405 must "set out the source of the
duty imposed by law which the defendant failed to perform in
addition to the specification of the facts alleged to constitute
the failure of performance." Id. at 794. The indictment in
Beruman failed to set forth the positive statutory duty the
defendant was alleged to have breached. Id. However, here the
indictment clearly stated the duty the defendant was alleged to
have breached--the duty not to make and issue false official
certificates.
Defendant next argues that count three is insufficient because
it fails to adequately identify the specific false statement
deemed to violate section 18-8-406, 8B C.R.S. (1986). Where a
statute defines an offense in general terms, the indictment must
allege the acts and conduct of the defendant which are deemed to
have violated the statute. People v. Zupancic, 192 Colo. 231,
235, 557 P.2d 1195, 1197-98 (Colo.1976). The offense of issuing
a false certificate is such an offense. Cf. People v. Broncucia,
189 Colo. 334, 336-37, 540 P.2d 1101, 1103 (1975), cert. denied,
431 U.S. 937, 97 S.Ct. 2647, 53 L.Ed.2d 254 (1977) (perjury
indictment failed to charge an offense because verbatim partial
transcript of defendant's actual testimony contained no averment
of fact demonstrating the falsity of the testimony on which the
charge was based).
Count three identifies the false statements as the statements
in the certificate pertaining to the position and authority of
Perko. The certificate states that "Perko is a law enforcement
deputy ... authorized to carry a firearm in connection with his
official duties. Deputy Perko is authorized to carry and use
personally owned firearms in the performance of his official
duties...." These two sentences, concerning the position and
authority of Perko, are adequately described by count three of
the indictment.
The defendant also argues that the count is insufficient in
that it fails to identify the weapons and the restrictions which
apply to the weapons. Defendant's argument is without merit.
Although the identity of the weapons and the restrictions
applying to them are relevant facts, (Footnote 2) neither
constitute an element of the crime charged. As noted above,
appropriate analysis examines whether the crime is adequately
described to enable the defendant to defend against the charge,
and plead the indictment as a bar to subsequent proceedings.
Count three meets this standard; fundamental fairness does not
require an indictment to set forth all the relevant facts in
great detail.
Finally, defendant argues that count three is insufficient in
that it fails to identify the official certificate or official
written instrument referred to in the charge. We disagree. It
clearly identifies the certificate at issue as the one: (1) made
on or about February 8, 1990; (2) on the Pueblo County Sheriff's
official stationery; (3) containing a statement concerning the
position and authority of Perko; (4) a certificate for Perko to
obtain federally restricted assault weapons; and (5) being
submitted to the Director of Alcohol, Tobacco and Firearms, a
federal agency. No more is required.
Accordingly, we reject defendant's arguments that count three
of the indictment failed to charge an offense.
IV
Finally, the defendant argues that the trial court erred in
holding that the defendant was bound by departmental policies
pertaining to the duties of deputies and the authorization of
such deputies to acquire and use weapons in their duties. In
effect, the defendant's position is that the certification
operated to "deputize" Perko overriding departmental policies to
the contrary. Specifically, the defendant objects to the trial
court's refusal to give two tendered instructions. Tendered
instruction 5 stated:
The sheriff of a county has the exclusive unlimited power and
authority to appoint and to terminate the employment of deputy
sheriffs, whether such deputies be full deputies or reserve
deputies. The sheriff further has the exclusive and unlimited
power and authority to specify and define the duties of the
deputies and reserve deputies which he may appoint. The
sheriff's power and authority over deputies and their duties
cannot be limited by departmental policies or procedures
adopted by the sheriff for the administration of his
department.
Tendered instruction 6 stated:
A county sheriff has the exclusive and unlimited power and
authority to designate the type of firearms which may be
acquired or used by deputy sheriffs or by reserve deputy
sheriffs in connection with those duties which the sheriff may
assign to such deputies or reserve deputies. The power or
authority cannot be limited by departmental policies adopted
for the administration of the sheriff's department.
The trial court found that the tendered instructions were
incomplete and inaccurate statements of the authority of a
sheriff. This conclusion is correct. Section 30-10-510, 12A
C.R.S. (1986), provides:
Every appointment of an undersheriff or of a deputy sheriff,
and every revocation of such appointment, shall be in writing,
under the hand of the sheriff, and shall be filed in the office
of the county clerk and recorder; but this section shall not
extend to any person who may be deputized *911.
by any sheriff or undersheriff to do a particular act only.
The "exclusive and unlimited power and authority" which the
tendered instructions allege belong to the sheriff were
incomplete and inaccurate statements of the law, and were
properly refused. People v. Alexander, 663 P.2d 1024, 1031-32
(Colo.1983).
Judgment affirmed.
FOOTNOTES
1. Because the constitutionality of a statute is at issue in this
appeal the court of appeals lacks jurisdiction, and this court
has original appellate jurisdiction. Compare Sec. 13-4-102(1)(b),
6A C.R.S. (1987) (court of appeals has no
jurisdiction where constitutionality of statute at issue) with
Sec. 13-4-102(1)(b), 6A C.R.S. (1992 Supp.) (for appeals taken
after July 1, 1992, the court of appeals has no jurisdiction over
cases in which statute is declared unconstitutional).
2. Absent the federal restrictions on sale of Steyr AUG semi-automatic
rifles there would be no need for the defendant to have
made the certification.